Karen Diemer v. Arkansas Department of Human Services and Taylor Diemer, a Minor

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I

KAREN DIEMER

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES AND TAYLOR DIEMER, A MINOR

APPELLEES

CA 01-530

MARCH 13, 2002

APPEAL FROM THE PULASKI COUNTY CHANCERY COURT

[NO. JJN 99-799]

HONORABLE RITA WILLIAMSON GRUBER, CHANCERY JUDGE

AFFIRMED

The appellant, Karen Diemer, appeals from an order of the Pulaski County Chancery Court in which the court terminated her parental rights. Appellant argues on appeal that the trial court erred in finding that the appellee, Arkansas Department of Human Services (DHS), met its burden of proof, and that the trial court, by failing to appoint counsel for her until immediately prior to trial, violated her constitutional rights as it was impossible for her to have effective assistance of counsel. We find no error, and affirm.

Appellant gave birth to Taylor Diemer on March 30, 1999.1 On April 2, 1999, DHS filed a Petition for Emergency Custody. DHS alleged that appellant was verbally threatening the infant in the hospital, that appellant was not interacting appropriately with and caring for

the child, and that the child had tested positive for THC (derived from marijuana) at birth. On April 5, 1999, an Order for Emergency Custody was entered. On April 12, 1999, a probable cause hearing was held. At the probable cause hearing appellant requested a court-appointed attorney. The court, upon finding probable cause, set an adjudication hearing, and appointed counsel for appellant.

On May 17, 1999, the adjudication hearing was held, and the court found that the child was dependent-neglected, and continued previous orders with the goal of reunification with appellant. The court ordered that appellant obtain and maintain a stable home and income, participate in parenting classes, visit with her child, undergo drug and alcohol assessment, submit to random drug screens, participate in counseling, and receive homemaker services. At this hearing, appellant was represented by a court-appointed attorney.

A review hearing was held on September 27, 1999, in which the court noted that there was some movement toward meeting the court's orders and continued the child in foster care. Appellant retained private counsel to represent her at this hearing.

A permanency planning hearing was held on March 20, 2000. At this hearing the court continued previous orders and set the case for a termination of parental rights hearing. Appellant was not represented by counsel at this hearing. A termination of parental rights hearing was held on September 11, 2000. On September 8, 2000, the Friday before the hearing, the court appointed new counsel to represent appellant. On October 20, 2000, the court entered an order terminating the parental rights of appellant. It is from this order thatappellant appeals.

Arkansas Code Annotated § 9-27-341(b)(3)(Repl. 2002) provides that:

(3) An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence;

(A) That it is in the best interest of the juvenile, including consideration of the following factors:

(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and

(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent, parents, or putative parent or parents;

(B) Of one (1) or more of the following grounds:

(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent.

In this case, DHS cites subsection (3)(B)(i)(a) as the grounds on which it sought to terminate parental rights. In chancery cases we review the case de novo, but we do not reverse findings of the chancellor unless they are clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). In reviewing a chancery court's findings, we give due deference to the court's superiorposition to determine the credibility of the witnesses and the weight to be accorded their testimony. Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000).

In the present case, DHS had to prove by clear and convincing evidence that: (1) termination was in the child's best interest; (2) the child had been adjudicated dependent-neglected; (3) the child had been out of the home for twelve (12) months; (4) DHS made a meaningful effort to rehabilitate the home and correct the conditions that caused removal; and (5) those conditions have not been remedied by appellant. Appellant does not dispute that the child was dependent-neglected and remained out of the home for more than twelve months. Nor does appellant argue that termination was not in the best interest of the child. Instead, appellant argues that she complied with the case plan, and thus her rights should not have been terminated. We disagree. We find that appellant did not fully comply with her case plan, and the trial court did not err in terminating her parental rights.

Ms. Leonda Hensley, the clinical therapist at Youth Home, testified that she "would have concerns for the child if he were returned to Karen's custody and control and care." Ms. Hensley further testified that there has not been any progress that she is aware of regarding appellant's issues. Regarding appellant's drug issues, Ms. Hensley testified that, "Well, for example, she had a positive drug test, was sent to rehab and she stayed only for a couple of days and said she didn't need that in her life." Ms. Hensley testified that appellant refuses to deal with her anger, and that "a child placed in that environment would be in danger of neglect, lack of skills and ability to meet needs."

Although appellant has tested negative for drugs on some occasions, she has testedpositive on some occasions. Appellant has not maintained employment, received drug and alcohol treatment, maintained stable housing, or attended counseling as ordered by the court. There was a month, November 1999, in which appellant did not visit her son. Appellant claims that the reason she did not attend counseling was that DHS failed to provide her with transportation. However, Johnnie Marie Branch, the supervisor for the case worker, testified that DHS did in fact provide appellant with transportation, but appellant failed to go. Ms. Branch testified that, "We did arrange transportation. This was the summer of 2000. And when the workers went, Karen did not go." Appellant argues that she has maintained a stable residence throughout the case. However, Ms. Branch having been to the house testified that "the home isn't suitable for the return of Taylor at this time." Ms. Branch testified that the house was roach infested. Further, appellant continues to live with her mother, who is registered on the Central Registry for child abuse against appellant. Ms. Branch stated that the house was not safe for a child. Ms. Branch further testified that the house was extremely dilapidated, and the yard contained appliances, a hole, lawn tools, broken car motors, and broken glass.

Appellant submits that she is currently working. She testified that she is working for a carpenter who is a friend of hers. She cleans his house three times per week, and he pays her $60 per week. She also babysits sometimes, for which she sometimes gets paid $35 per week. Appellant testified that she thought $60 per week was enough money to provide for her child's needs. Ms. Branch testified that appellant did not have stable employment. Ms. Branch stated that she considered stable employment to mean work every day, forty hoursa week, consistently over a period of time, and appellant has not done that. Based on the above evidence, we hold that the trial court did not err in terminating appellant's parental rights. The termination of appellant's parental rights was in the best interest of the child.

Appellant's second point on appeal is that the trial court violated her constitutional rights by failing to appoint counsel for her until the Friday before the termination of parental rights hearing. Appellant argues that the trial court's failure to appoint her counsel until immediately before trial caused her to have ineffective assistance of counsel. In proceedings to terminate parental rights, an attorney will be appointed for a parent if he or she so desires and cannot afford one. Ark. Code Ann. § 9-27-316 (Repl. 2002); Briscoe v. State, 323 Ark. 4, 912 S.W.2d 425 (1996). Counsel must be appointed before the hearing on termination of parental rights, and in sufficient time to prepare for the hearing. Id. In this case, an attorney was appointed the Friday before the hearing on Monday. There was never an objection to the late date of the appointment and appellant did not ask for a continuance. Thus, the issue was not presented to the trial court for a ruling. We will not address issues that are raised for the first time on appeal. Qualls v. White, 342 Ark. 681, 30 S.W.3d 735 (2000). Further, appellant has not demonstrated prejudice by the timing of the appointment of counsel. We will not reverse the trial court absent a showing of prejudice. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001).

Affirmed.

Robbins and Roaf, JJ., agree.

1 Taylor Diemer, represented by a guardian ad litem, is an appellee in this case.